KARIMBANAKKAL POKKER Vs. KATHRIKOYA MOLLA

JUDGEMENT

(1.) Admittedly, the Idayangara mosque and its properties form a public trust of a religious and charitable nature and as such, a wakf. First defendant was its former trustee. He was removed and in his place, second defendant was appointed as trustee. A schedule properties are admittedly trust properties and they were surrendered to the second defendant. Plaintiff, claiming to be a resident in the mahal and a worshipper of the mosque, filed the suit representing the inhabitants in the mahal after publication under O.1 R.8, (i) for a declaration that B schedule properties are also wakf properties, which are not liable to be alienated by the first defendant as his own, (ii) for a direction to surrender B schedule properties also to the second defendant, and (iii) for a further declaration that first defendant cannot alienate the properties.

(2.) Defendants 1 and 2 alone were made parties when the suit was filed. Third defendant is the alienee of B schedule properties. His contention is that B schedule properties are not wakf properties, but they exclusively belonged to the father of the defendant, first under whom defendants 7 and 8 were in possession on karaima tenure, and he got their rights. Fourth defendant is the Wakf Board and defendants 5 and 6 are the present President and Secretary of the mahal committee. They were impleaded. None of them, except the third defendant, contested the claim.

(3.) Third defendant resisted the suit on three grounds, namely; (i) schedule properties are not wakf properties; (ii) plaintiff is not an interested person and as such not entitled to maintain the suit; and (iii) the suit is not maintainable for non compliance of the provisions of S.92 of the Code of Civil Procedure. Parties let in evidence, oral and documentary. Without looking into the evidence and deciding the suit on the merits, Trial Court dismissed the suit on grounds that plaintiff is not an interested person and the provisions of S.92 of the Code, of Civil Procedure are not complied with. The Appellate Judge did not go into the competency of the plaintiff. The dismissal was confirmed for the reason that S.92 of the Code of Civil Procedure and S.55 of the Wakf Act were not complied with. That is how the plaintiff came up in second appeal.